John Doe II Should End

Tuesday, December 8, 2015

The Wisconsin Supreme Court has issued yet another decision in John Doe II, the protracted and secret investigation into whether a political group exercising free political speech rights improperly coordinated with Governor Walker during the recall election. For the second time this year, the Wisconsin Supreme Court directed that the John Doe proceeding be halted based upon the Court’s conclusion that prosecutors did not have a legal basis to investigate these political groups when they commenced John Doe II. The Court found that campaign finance statutes upon which the prosecutors relied violate free political speech rights guaranteed by both the United States Constitution and the Wisconsin Constitution.

 

Thus, the Court said that the matter is closed, and the evidence seized through subpoenas and search warrants issued as part of the investigation must be returned. That has not yet occurred, and the owners of that property are understandably upset.

 

The special prosecutor has indicated that he intends to appeal. The only level of appeal left is to the Supreme Court of the United States (SCOTUS), but it is very unlikely SCOTUS would take the case. In the unlikely scenario that SCOTUS were to accept the case, it would more than likely uphold the Wisconsin Supreme Court's decision.

 

I write because I have indirectly been asked as Wisconsin Attorney General to intervene on behalf of the John Doe targets. The Wisconsin DOJ played a role in the proceedings before the Wisconsin Supreme Court, although it was not a leading role. DOJ represented the judge who was assigned to John Doe II after the initial judge recused herself. The new judge quashed subpoenas issued in the John Doe proceeding, finding that the special prosecutor's theory of the case was not supported by Wisconsin law. The special prosecutor appealed that ruling, and DOJ represented the judge in the Wisconsin Supreme Court.

 

Last week, the Wisconsin Supreme Court again ordered that the seized evidence be returned to its owners. Given that DOJ represented the judge who first found that the John Doe proceeding was invalid, DOJ certainly has no intention of standing in the way of those orders. The Supreme Court’s order should be carried out forthwith. DOJ has no authority to represent those individual property owners in their effort to enforce the Supreme Court’s order.

 

This has been a long, unfortunate chapter in Wisconsin's history. The courts have unequivocally rejected the John Doe investigation, both in the manner in which it was carried out, as well as the legal arguments brought by the prosecutors. The Wisconsin Supreme Court has now ordered that the property seized be returned. For everyone involved, the special prosecutor should end the case, and the property seized from the individuals in this case should be returned immediately.